Quoth the Raven: “Blue & Gold” – Disappointed Offeror Must Protest RFP Modification Before Award

In August 2010, DoD issued an RFP contemplating a multiple-award contract for a basic agreement and two task orders. Fourteen bidders, including “Comint Systems Corporation and Eyeit.com, Inc. Joint Venture” (Comint) submitted proposals for the basic agreement and the two task orders. After proposals had been submitted, DoD amended the RFP. The amendment stated that the Government would not award the two task orders for which proposals had been solicited. Rather, the task order proposals would be considered solely for the purpose of evaluating proposals for the basic contract. The amendment stated that DoD would not accept any proposal revisions. The following day, Comint submitted a signed acknowledgment of the amendment. Several months later, In April 2011, the DoD awarded the contract to three other offerors.
At the Court of Federal Claims, Comint argued that the amendment changed the so RFP substantially that DoD was required either to cancel the RFP or allow offerors to submit revised proposals. The Government responded that Comint failed to preserve its challenge to the amendment because it did not protest the solicitation until after the contract was awarded.


The Federal Circuit agreed with the government and held that by virtue of the timing of Comint’s protest, it waived its right to protest. . In reaching this conclusion, the Court relied on Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007), in which the Federal Circuit held that if party has an opportunity to protest the terms of a solicitation and fails to do so before the proposal due date, the party waives the right to object to possibility of protesting the solicitation before the proposal due date, “the reasoning of Blue & Gold applies to all situations in which the protesting party had the opportunity to challenge the solicitation before the award and failed to do so.”


The Court of Appeals relied on two main justifications. First, it concluded that the waiver rule of Blue & Gold prevents contractors from having a “second bite at the apple” – to take advantage of the government and other bidders by bringing post-award, after-the-fact litigation. Second, the Federal Circuit noted that the GAO applies a similar rule: it does not allow a disappointed bidder to protest after the award if the basis for the protest became apparent at least ten days before the award. It would be incongruous to preclude GAO protests but permit court challenges in the same situation. Therefore, if there is adequate time for a disappointed bidder to protest solicitation terms, the disappointed bidder must protest before award. Comint Systems Corporation and Eyeit.com, Inc. Joint Venture. v. United States, No. 2012-5039 (Fed. Cir. Dec. 7, 2012).


Practice Tip: If there is any possibility to characterize a protest as a challenge to a solicitation provision, expect the courts and GAO to dismiss it if it is filed after award.


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